2016 (6) TMI 912 - AT - Central Excise

Cenvat Credit - fraudulent availment of Cenvat credit on invoices obtained from a registered dealer without actual receipt of goods - assumptions / presumptions - Held that - This Tribunal in the final Order dated 20-01-2016 in the case of M/s Sri Lakshmi Industries Ltd 2016 (6) TMI 823 - CESTAT HYDERABAD and another has analyzed the very same evidence and has set aside the demand raised on the allegation of fraudulent availment of credit on invoices issued by KMC. After examining the evidences presented by this case I do not find any ground to take a different view. The whole case is founded on statements and private records of third party Shri Prabhakar. The allegation of duty evasion cannot be made basing upon private records and statement of a third party unless cross examination of such person is allowed. It is settled law that confessional statements have to be supported by independent evidence to establish the charge of clandestine manufacturer and evasion of duty. - Demand set aside - Decided in favor of assessee.

Issues Involved:
1. Fraudulent availment of Cenvat credit by AEPL.
2. Legitimacy of evidence based on private records and statements.
3. Confiscation and penalties imposed on AEPL and KMC.
4. Consistency with prior similar cases and judgments.

Detailed Analysis:

1. Fraudulent Availment of Cenvat Credit by AEPL:
The department alleged that AEPL fraudulently availed Cenvat credit on invoices from KMC without actual receipt of goods. Investigations revealed discrepancies in input invoices such as vague descriptions and missing sizes of aluminium rolled products. It was found that KMC issued invoices without supplying goods, and AEPL availed credit on these invoices. The show cause notice demanded ?8,20,779/- as credit availed fraudulently, along with interest and penalties.

2. Legitimacy of Evidence Based on Private Records and Statements:
The appellants contended that the case was based on inferences from private records and statements of Shri Prabhakar, an employee of KMC. They argued that no opportunity was given to cross-examine Shri Prabhakar, and no discrepancies were found in AEPL's statutory records. The department failed to provide evidence that AEPL procured raw materials from the local market. The Tribunal noted that similar cases involving the same evidence had been dismissed, highlighting the lack of concrete evidence linking private records to KMC.

3. Confiscation and Penalties Imposed on AEPL and KMC:
The Order-in-Original confirmed the demand of ?8,20,779/- and imposed equal penalties, along with confiscation of finished goods valued at ?50,81,200/-. However, the Commissioner (Appeals) set aside the confiscation of finished goods and reduced the penalty on AEPL to ?50,000/-. The penalties on KMC and its Managing Director were sustained. The Tribunal found that the penalties and confiscations were not sustainable due to the lack of evidence proving fraudulent activities.

4. Consistency with Prior Similar Cases and Judgments:
The Tribunal considered previous decisions where similar allegations against other manufacturers were dismissed. In cases like M/s Kedia Electrical Ltd., M/s Sri Lakshmi Industries, and M/s Khaitan Electrical Ltd., the demands were set aside due to insufficient evidence. The Tribunal emphasized the need for corroborative evidence beyond statements and private records. The Tribunal in the present case found no reason to deviate from these precedents, reinforcing the decision to allow the appeals.

Conclusion:
The Tribunal concluded that the impugned orders were not sustainable due to the reliance on uncorroborated statements and private records of a third party. The appeals were allowed with consequential reliefs, setting aside the demands and penalties imposed on AEPL and KMC.

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